Court File and Parties

COURT FILE NO.: CV-85-SM000150

-and-

Piccolo v. Piccolo

94-GD-29584

DATE: 20140912

SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No: CV-85-SM000150

RE: Sam Piccolo, Applicant

AND:

Anthony Piccolo, carrying on business as Sam’s Auto Body Shop, Respondent

• and -

Court File No: 94-GD-29584

Sam Piccolo, Applicant

AND:

Anthony Piccolo, Respondent

BEFORE: Master Lou Ann M. Pope

COUNSEL: Raymond G. Colautti, Counsel, for the Applicant

Claudio Martini, Counsel, for the Respondent

ruling ON REFERENCE

[1] The issue is whether the evidence of the applicant’s proposed expert witness, Ed Miles, meets the criteria for expert evidence.

[2] The Supreme Court of Canada’s decision in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, is the leading case on this issue. The Supreme Court held that admission of expert evidence depends on the application of the following criteria:

(a) Relevance;

(b) Necessity in assisting the trier of fact;

(c) The absence of any exclusionary rule;

(d) A properly qualified expert.

[3] The issue on this reference is criteria (b) – necessity in assisting the trier of fact.

[4] The Supreme Court went on to discuss the second criterion. The court concluded that the appropriate test for necessity is whether the expert is capable of assisting the trier by providing information likely to be beyond the trier’s knowledge and experience (Carmen Alfano Family Trust v. Piersanti, 2012 ONCA 297, para. 104).

[5] In determining whether an expert’s evidence will be helpful, a court will, as a matter of common sense, look to the question of the expert’s independence or objectivity (Alfano, para. 105).

[6] The Court of Appeal in Alfano commented that courts have taken a pragmatic approach to the issue of the independence of expert witnesses recognizing that “experts are called by one party in an adversarial proceeding and are generally paid by that party to prepare a report and to testify.” It stated that the “alignment of interest of an expert with the retaining party is not, in and of itself, a matter that will necessarily encroach upon the independence or objectivity of the expert’s evidence” (para. 106). However, it went on to state that “courts remain concerned that expert witnesses render opinions that are the product of their expertise and experience and, importantly, their independent analysis and assessment” (para. 107) (emphasis added).

[7] It went on to state in para. 108 that:

. . . experts should not become advocates for the party or the positions of the party by whom they have been retained. It is not helpful to a court to have an expert simply parrot the position of the retaining client. Courts require more. The critical distinction is that the expert opinion should always be the result of the expert’s independent analysis and conclusion. While the opinion may support the client’s position, it should not be influenced as to form or content by the exigencies of the litigation or by pressure from the client. An expert’s report or evidence should not be a platform from which to argue the client’s case. [Emphasis added.]

[8] The court stated that in most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert’s evidence rather than as a matter of the admissibility. It went on to state: “Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency” (para. 110) (emphasis added).

[9] However, it was further held that the “court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. In reaching such a conclusion, a trial judge may take into account whether admitting the evidence would compromise the trial process by unduly protracting and complicating the proceeding. If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has a discretion to exclude the evidence” (para. 111) (emphasis added).

[10] In my view, the crux of the issue is that Mr. Miles, in his report, does not express an opinion, admittedly.

[11] Despite Mr. Dantzer’s statements in 2002 and 2003 that Mr. Miles was their “financial advisor” and “accountant”, based on the evidence to date, I accept that he was retained by Susan and Sam Piccolo in 2002 to assist them with this litigation, which by its nature, and for the most part, involves accounting issues.

[12] Mr. Miles’ file is replete with correspondence from Susan and Sam that instruct him on the basis for his calculations. One example is Exhibit 8 which appears to be Susan Piccolo’s notes where she states “Prepare a schedule of said wages 1971 to 1994 including compound interest . . . ”. Further she states, “Accrued wages are now due and owing with interest.”

[13] Rather than Mr. Miles’ report being the result of his independent analysis and conclusion, as described in Alfano, he did the opposite – he took Susan and Sam’s analysis and conclusions and manufactured a report to reflect their views. I do not state “manufactured” in a derogatory sense. He was merely doing what his clients requested of him. There is nothing wrong with that. The issue becomes; however, whether what he did meets the Mohan criteria for admissibility as expert evidence.

[14] In my view, it does not meet the necessity criteria. His evidence is not independent in the sense that he did not perform his own analysis, or form his own conclusions. The requirement is that his skilled analysis and conclusions not be influenced as to form and content by his clients. As I stated above, he used his client’s analysis and conclusions, combined with the financial statements and other documents, as the basis for his calculations. In that sense, his report is biased. He was influenced by Susan and Sam’s views. There is nothing independent about his report. Although his calculations may be helpful to the applicant in quantifying his position given the claims, and it may ultimately be helpful to the court, this is not the sole criteria.

[15] Regarding independence, it is clear from the evidence that the contents of his report with respect to revenue from rent are based on prior history and the applicant’s expectations. Similarly, the amount of executive salaries received or not received is based on representations from the applicant.

[16] In my view, the evidence supports the conclusion that Mr. Miles’ report and evidence is nothing more than a platform from which to argue the applicant’s case, to use the Court of Appeal’s expression in Alfano. To repeat, Mr. Miles gives no opinion. That said, how can his evidence and report be considered an expert report, or an expert opinion if there is no opinion.

[17] In relying on Alfano, the applicant argues that the court should adopt a common sense approach by dealing with the issue of lack of independence as a matter of weight to be attached to Mr. Miles’ evidence rather than as a matter of admissibility. In this case, however, I am satisfied that Mr. Miles’ evidence is completely tainted and biased for the reasons set out above that it is of no assistance to the court in determining the issues.

[18] I have concluded that Mr. Miles’ evidence does not meet the Mohan criteria and cannot be admitted for the purpose of an expert opinion.

Original signed by “Master Lou Ann M. Pope”

Lou Ann M. Pope

Case Management Master

Released: September 12, 2014